Practice and Effects of Law Scrutiny Adopted by the Hong Kong Court of Final Appeal

Abstract

Article 8 and Article 158 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (hereafter referred to as the Basic Law) introduced the two kinds of constitutionalism for Hong Kong SAR: Article 8, by a general recognition of the previous colonial laws, continues to put Hong Kong constitutionalism under the shadow of common law system (Michael Dowdle 2008) and Article 158, by interpretations of the Standing Committee of the National People’s Congress (hereafter referred to as the NPCSC), introduced in the constitutionalism of statute law. Although some scholars raised challenges as to whether the Hong Kong Court of Final Appeal (hereafter referred to as the CFA) is entitled to conduct law scrutiny (Fu Singming 2001; Dong Likun and Zhang Shudian 2010), it is still an undoubted fact that the CFA is conducting law scrutiny in Hong Kong. The power of law scrutiny of the CFA is undoubtedly under the dual framework of common law constitutionalism and statute law constitutionalism. The features of common law system have decided that the Hong Kong constitutionalism is shaped and contained in the long legal tradition ever since the colonial age, or to some extent, it even dates back to the “Counterformation” of English constitutionalism (Michael Dowdle 2008). The statute law elements embodied in the Interpretations of the NPCSC, at the same time, impose a limit on the Hong Kong constitutionalism, setting up boundaries for Hong Kong constitutionalism. Under these circumstances, the role of the CFA is quite limited, either subject to common law constitutionalism or restricted by the statute law constitutionalism. However, it is exactly this arrangement that renders the CFA a chance of connotative development. Despite some radical attempts, the CFA has generally strike the right balance while implementing the Basic Law; it has played a positive and leading role in the Hong Kong constitutional order constructed by the Basic Law. The intricate role has decided that the CFA must deal with cases regarding law scrutiny with prudence. In practice, the CFA has developed a set of approaches based on judicial reason, prudently conducting law scrutiny, trying to secure the uniformity and stability of Hong Kong legal institution on the delicate balances. If we were to say that in the early days after the handover, this practice based on judicial reason can only be partly demonstrated in cases regarding the right of abode, then a decade after the handover, we can say that this practice has been meticulously systematized. In this chapter, the author tries to analyze the cases regarding law scrutiny adjudicated by the CFA and give a theoretical description of this meticulous system so as to disclose the practice and effects of law scrutiny adopted by the CFA under dual constitutionalism.